

[Federal Register: January 29, 2008 (Volume 73, Number 19)]
[Rules and Regulations]               
[Page 5091-5093]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29ja08-5]                         

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DEPARTMENT OF HOMELAND SECURITY

Coast Guard

33 CFR Part 117

[CGD05-07-026]
RIN 1625-AA09

 
Drawbridge Operation Regulations; Atlantic Intracoastal Waterway 
(AIWW), Sunset Beach, NC

AGENCY: Coast Guard, DHS.

ACTION: Final rule.

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SUMMARY: The Coast Guard is changing the drawbridge operating 
regulations that govern the S.R. 1172 Bridge, at AIWW mile 337.9, 
Sunset Beach, NC. This final rule will allow the bridge to open on the 
hour on signal for pleasure vessels from 7 a.m. to 9 p.m. year round. 
The reason for this change would be to improve the schedule for both 
roadway and waterway users.

DATES: This rule is effective February 28, 2008.

ADDRESSES: Comments and material received from the public, as well as 
documents indicated in this preamble as being available in the docket, 
are part of docket CGD05-07-026 and are available for inspection or 
copying at Commander (dpb), Fifth Coast Guard District, Federal 
Building, 1st Floor, 431 Crawford Street, Portsmouth, VA 23704-5004 
between 8 a.m. and 4 p.m., Monday through Friday, except Federal 
holidays. The Fifth Coast Guard District maintains the public docket 
for this rulemaking.

FOR FURTHER INFORMATION CONTACT: Gary Heyer, Bridge Management 
Specialist, Fifth Coast Guard District, at (757) 398-6629.

SUPPLEMENTARY INFORMATION:

Regulatory History

    On May 8, 2007, we published a notice of proposed rulemaking (NPRM) 
entitled ``Drawbridge Operation Regulation; Atlantic Intracoastal 
Waterway (AIWW), Sunset Beach, NC'' in the Federal Register (72 FR 
26038). We received 10 comments on the proposed rule. No public meeting 
was requested, and none was held.

Background and Purpose

    The S.R. 1172 Bridge at Sunset Beach has zero vertical clearance to 
vessels when in the closed position at mean high water.
    The North Carolina Department of Transportation (NCDOT) owns and 
operates this single-lane, floating steel-barge, swing-span referred to 
as a pontoon drawbridge. Current regulations set out at 33 CFR 
117.821(a)(5) require the bridge to open on signal for commercial 
vessels at all times; and on the hour on signal for pleasure vessels 
between 7 a.m. and 7 p.m., April 1 to November 30, except that on 
Saturdays, Sundays, and Federal holidays, from June 1 through September 
30, the bridge shall open on signal on the hour between 7 a.m. and 9 
p.m.
    NCDOT and the residents of the Town of Sunset Beach requested a 
change to the operating regulations for the S.R. 1172 Bridge in an 
effort to improve the schedule for both roadway and waterway users. The 
S.R. 1172 Bridge provides the only route on and off Sunset Beach 
Island. This rule will not change the requirement for the bridge to 
open on signal at any time for commercial vessels.
    The Coast Guard reviewed the bridge logs for 2005 and 2006 provided 
by NCDOT which illustrate a small decrease in the numbers of vessels 
passing through the bridge during the spring, summer, and fall over the 
past year. Most vessels transiting the area in the spring and fall are 
operated by owners commonly referred to as ``snowbirds''. Owners of 
these transitory recreational vessels are either traveling north to 
south towards a warmer climate in the fall or south to north towards a 
cooler climate in the spring which can result in frequent bridge 
openings due to increased vessel numbers. During the spring and fall 
months, the flow of recreational vessels is constant.
    There were approximately 10,461 and 11,429 vessel passages 
occurring in 2006 and 2005, respectively, over an eight-month period 
(during the peak boating season from April to November) according to 
records furnished by the NCDOT. (See Table A)

                                                                         Table A
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    JAN          FEB          MAR          APR          MAY          JUN          JUL          AUG          SEPT         OCT          NOV         DEC
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                BRIDGE OPENINGS FOR 2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
      233          191          307          392          436          394          451          392          349          386         326         317
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                                                                 BOAT PASSAGES FOR 2006
--------------------------------------------------------------------------------------------------------------------------------------------------------
      273          157          463         1207         1659         1538         1486         1024          921         1234        1392         481
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                BRIDGE OPENINGS FOR 2005
--------------------------------------------------------------------------------------------------------------------------------------------------------
      218          165          313          322          441          439          474          413          327          393         331         297
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 BOAT PASSAGES FOR 2005
--------------------------------------------------------------------------------------------------------------------------------------------------------
      294          211          532         1041         1767         1438         1639         1152          834         1302        2256         538
--------------------------------------------------------------------------------------------------------------------------------------------------------

    The final rule will facilitate pleasure vessels in navigating the 
AIWW, while also helping to ease vehicular traffic congestion.

Discussion of Comments and Changes

    The Coast Guard received 10 comments to the NPRM published on May 
8, 2007 (72 FR 26038). The comments included nine letters from 
homeowners and one written request from the North Carolina Department 
of Environment and Natural Resources, Division of Coastal Management 
(NCDCM).
    Of the nine comments received from homeowners, eight favored the 
proposal

[[Page 5092]]

to allow the bridge to open on the hour on signal for pleasure vessels 
from 7 a.m. to 9 p.m. year round. The remaining comment opposed the 
proposal. However, that comment inaccurately concluded that the 
proposal would change the opening schedule to ``on demand'' for 
pleasure vessels. This rule will not create an ``on demand'' schedule, 
therefore we do not consider this comment to oppose the NPRM or this 
final rule.
    The last comment from NCDCM contained a request that the NPRM be 
subject to a consistency review under the Coastal Zone Management Act. 
The Coast Guard response is included in the ``Environment'' section 
below.
    Based on all of the comments received, we are publishing this final 
rule with no changes from the NPRM. Under this final rule, the draw of 
the S.R. 1172 Bridge will open on signal at all times for commercial 
vessels and on the hour on signal between 7 a.m. and 9 p.m., year-round 
for pleasure vessels. At all other times, the draw shall open on 
demand.

Discussion of Rule

    The Coast Guard is amending 33 CFR 117.821, by revising paragraph 
(a)(5) for pleasure vessels to read ``shall open on the hour on signal 
from 7 a.m. to 9 p.m.'' What this means is that the bridge shall only 
open on the hour, but that it may remain closed on certain hours if no 
one has requested an opening for that hour.

Regulatory Evaluation

    This rule is not a ``significant regulatory action'' under section 
3(f) of Executive Order 12866, Regulatory Planning and Review, and does 
not require an assessment of potential costs and benefits under section 
6(a)(3) of that Order. The Office of Management and Budget has not 
reviewed it under that Order. It is not ``significant'' under the 
regulatory policies and procedures of the Department of Homeland 
Security (DHS).
    In accordance with 15 CFR part 930.35(a)(1) Negative determinations 
of proposed activities, we based this action on careful review of the 
waterway use, historical reports, and dated records seeking past 
impacts on coastal and natural resources around the bridge and within 
the surrounding areas.

Small Entities

    Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have 
considered whether this rule would have a significant economic impact 
on a substantial number of small entities. The term ``small entities'' 
comprises small businesses, not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000.
    The Coast Guard certifies under 5 U.S.C. 605(b) that this rule 
would not have a significant economic impact on a substantial number of 
small entities.
    This conclusion is based on the fact that the changes will have 
only a minimal impact on maritime traffic transiting the bridge. 
Mariners can plan their trips in accordance with the scheduled bridge 
openings to minimize delays.

Assistance for Small Entities

    Under section 213(a) of the Small Business Regulatory Enforcement 
Fairness Act of 1996 (Pub. L. 104-121), we want to assist small 
entities in understanding this rule so that they can better evaluate 
its effects on them and participate in the rulemaking process. No 
assistance was requested from any small entity.

Collection of Information

    This rule calls for no new collection of information under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).

Federalism

    A rule has implications for federalism under Executive Order 13132, 
Federalism, if it has a substantial direct effect on State or local 
governments and would either preempt State law or impose a substantial 
direct cost of compliance on them. We have analyzed this rule under 
that Order and have determined that it does not have implications for 
federalism.

Unfunded Mandates Reform Act

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or tribal government, in 
the aggregate, or by the private sector of $100,000,000 or more in any 
one year. Though this rule will not result in such expenditure, we do 
discuss the effects of this rule elsewhere in this preamble.

Taking of Private Property

    This rule would not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Civil Justice Reform

    This rule meets applicable standards in sections 3(a) and 3(b) (2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Protection of Children

    We have analyzed this rule under Executive Order 13045, Protection 
of Children from Environmental Health Risks and Safety Risks. This rule 
is not an economically significant rule and would not create an 
environmental risk to health or risk to safety that might 
disproportionately affect children.

Indian Tribal Governments

    This rule does not have tribal implications under Executive Order 
13175, Consultation and Coordination with Indian Tribal Governments, 
because it would not have a substantial direct effect on one or more 
Indian tribes, on the relationship between the Federal Government and 
Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.

Energy Effects

    We have analyzed this rule under Executive Order 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action'' under that order because it is not a ``significant 
regulatory action'' under Executive Order 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under Executive Order 13211.

Technical Standards

    The National Technology Transfer and Advancement Act (NTTAA) (15 
U.S.C. 272 note) directs agencies to use voluntary consensus standards 
in their regulatory activities unless the agency provides Congress, 
through the Office of Management and Budget, with an explanation of why 
using these standards would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., specifications of materials, performance, design, or 
operation; test methods; sampling procedures; and related management 
systems practices) that are developed or adopted by voluntary consensus 
standards bodies.

[[Page 5093]]

    This rule does not use technical standards. Therefore, we did not 
consider the use of voluntary consensus standards.

Environment

    We have analyzed this rule under Commandant Instruction M16475.lD 
and Department of Homeland Security Management Directive 5100.1, which 
guide the Coast Guard in complying with the National Environmental 
Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have concluded 
that there are no factors in this case that would limit the use of a 
categorical exclusion under section 2.B.2 of the Instruction. 
Therefore, this rule is categorically excluded, under figure 2-1, 
paragraph (32) (e) of the Instruction, from further environmental 
documentation because it has been determined that the promulgation of 
operating regulations for drawbridges are categorically excluded.
    The Coast Guard has determined that changing the operating schedule 
for the SR 1172 Bridge will not have any foreseeable effect on any 
coastal uses or natural resources within the coastal zone of the State 
of North Carolina.

List of Subjects in 33 CFR Part 117

    Bridges.

0
For the reasons discussed in the preamble, the Coast Guard amends 33 
CFR part 117 as follows:

PART 117--DRAWBRIDGE OPERATION REGULATIONS

0
1. The authority citation for part 117 continues to read as follows:

    Authority: 33 U.S.C. 499; Department of Homeland Security 
Delegation No. 0170.1; 33 CFR 1.05-1(g); section 117.255 also issued 
under the authority of Pub. L. 102-587, 106 Stat. 5039.


0
2. In Sec.  117.821, paragraph (a)(5) is revised to read as follows:


Sec.  117.821  Atlantic Intracoastal Waterway, Albermarle Sound to 
Sunset Beach.

* * * * *
    (a) * * *
    (5) S.R. 1172 Bridge, mile 337.9, at Sunset Beach, NC, shall open 
on the hour on signal between 7 a.m. to 9 p.m.
* * * * *

    Dated: December 18, 2007.
Fred M. Rosa, Jr.,
Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
 [FR Doc. E8-1476 Filed 1-28-08; 8:45 am]

BILLING CODE 4910-15-P
